3PLR – G & C LINES V. HENGRACE NIGERIA LTD

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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G & C LINES

V.

HENGRACE NIGERIA LTD

IN THE COURT OF APPEAL

LAGOS JUDICIAL DIVISION

8TH MAY 2000

SC.214/2000

3PLR/2000/104  (CA)

OTHER CITATIONS

9-10 S.C. 202

 

BEFORE THEIR LORDSHIPS

ATINUKE OMOBONILE IGE, JCA

SULEIMAN GALADIMA, JCA

AMIRU SANUSI, JCA

BETWEEN

1. G and C LINES
2. PANALPINA WORLD TRANSPORT (NIG.) LTD
3. GERETTO, SIOSA and G and C Lines Rep. In Nigeria.

 

AND

1. HENGRACE NIGERIA LTD
2. NIGERIA PORT PLC
3. DEPARTMENT OF CUSTOMS AND EXCISE

 

REPRESENTATION

Femi Atoyebi ESQ. with him Mr. S. Peters – for Appellants

N.I Nwogbo ESQ. – for 1st Respondent

 

MAIN ISSUES

PRACTICE AND PROCEDURE – JURISDICTION – Of Court – how determined.

PRACTICE AND PROCEDURE – JURISDICTION –waiver of demurrage – whether under admiralty jurisdiction of the Federal High Court – Decree 59 of 1991.

 

MAIN JUDGEMENT

1. O. IGE J.C.A, (delivering the leading judgment)

This is an appeal against the Ruling of the Lagos High Court delivered on the 11th February, 1999 in suit No. LD/3211/95 on issue of jurisdiction. In the court below, the 1st Respondent as Plaintiff sued the 3 Appellants as Defendants to Court claiming the following reliefs:-

 

1. A declaration that the Plaintiff is not liable to pay demurrage arising from the negligence of the 1st, 2nd and 3rd Defendants.

 

2. An order on the 1st, 2nd and 3rd Defendants for the unconditional release to the Plaintiff of container No. GR-LU-1079524.

 

3. An order of injunction on the defendants restraining them, their servants, agents or privies from auctioning, selling or otherwise disposing of container No. GR-LU-1079524.

 

4. Damages and costs against the 1st, 2nd and 3rd Defendants.”

 

According to paragraph 24 of the Plaintiff’s statement of claim, the Plaintiff’s claims read thus:-

 

“And the Plaintiff claims:-

 

(1)     Against the 1st, 2nd and 3rd Defendants a waiver of all demurrage payable to them or any of them and release of the container to the Plaintiff.

 

(2)     Alternatively from the 1st, 2nd and 3rd Defendants damages in the sum of N390,200 plus interest at 21% from 16th March 1995, the date the consignment would have been cleared, until final payment.

 

(3)     Against the 4th and 5th Defendants an order of injunction restraining them from auctioning the consignment or otherwise disposing of it.

 

DATED this 4th day of September 1995.

 

Before the action was to be heard the Plaintiff obtained an interim injunction by an ex-parte application before the Lagos High Court on 28-7-95 as follows:-

 

“It is hereby ordered:

 

1. An order of Interim Injunction hereby made, the defendants, their servants agents or privies are hereby restrained from auctioning, selling or otherwise disposing container No. GR-LU-1079524 pending the determination of the Motion on notice.

 

2. The Plaintiff shall file an under-taking to be liable for any damages that may be suffered by the Defendants if it is found that this order of Interim Injunction ought not to have been granted.” Motion on notice is fixed for 3rd day of October, 1995 for mention. On 6th October 1995 the Defendants Applicants/ Appellants brought a motion before the Lagos High Court asking for the following orders:-

 

“a.     to dismiss and /or strike out this action on the ground that this honourable Court lacks the jurisdiction to entertain the same,

 

1. to discharge the ex-parte order earlier obtained by the Plaintiffs in this matter on 28-7-95 and for such order or further orders as this honourable court may deem fit to make in the circumstances.”

 

After hearing arguments for and against the application alongside the affidavits filed by both parties, the learned trial Judge in a considered Ruling held that the Plaintiff’s claim does not fall within the Admiralty jurisdiction of the Federal High Court. That being so, the court held that it had jurisdiction. The preliminary objection was thereby dismissed and application for an order revoking the interim order dated 28-7-95 was also refused. The Appellants are dissatisfied with the above Ruling delivered on 11-2-99 and have therefore appealed to this Court by filing two grounds of appeal. Appellants have also formulated 2 issues for determination namely:-

 

“1.     Whether the learned trial Judge has Jurisdiction to entertain the Plaintiff’s (1st Respondent herein) claim as constituted before her, and

 

2. Was the learned trial Judge right in relying on the Supreme Court’s decision in A.M.C v. N.P.A. (1987) 1 NWLR (Pt.51) 475 to hold that the Plaintiff’s claim which relates to the surrender of the Bill of Lading covering imported goods by sea and/ or which arose within the Federal Port and after discharging of the cargo from the ship was outside the Admiralty jurisdiction of the Federal High Court?”

 

The 1st Respondent on its own part has formulated the following 3 Issues:-

“1.     What is the scope and limit of admiralty jurisdiction in relation to carriage of goods by sea, having regard to recognized legal authorities, applicable enactments and relevant judicial decisions?”

2. Whether on the state of the pleadings the learned trial Judge is right in holding “that the undertaking to deliver the Bill of Lading to the Plaintiff is outside the contract of carriage of goods by sea.”
3. Whether the learned trial Judge is right in holding that the claim does not fall within the Admiralty jurisdiction of the Federal High Court and that she has Jurisdiction to try the action.”

 

I propose to treat this appeal upon the two issues as formulated by the Appellant, The 1st Respondent has not averted his mind to the Rules of Court that issues must not exceed the grounds of appeal filed in an appeal. In formulating issues for determination in an appeal, there is a need for them to arise from grounds of appeal. Where the issues do not arise from grounds of appeal, they should be treated as non-issues and struck out. See the case of Tella v. Usman (1997) 12 NWLR (Pt. 531) 168. Moreover the appellate courts have always frowned at proliferation of issues. In the instant case, the Respondent has filed 3 issues out of two grounds of appeal This is a clear case of proliferation of issues and it should be discouraged.

 

Now to the first issue formulated by the appellant. The question is whether the learned trial Judge had jurisdiction to entertain the Plaintiff’s claim as constituted before her. To determine whether or not a court has jurisdiction over a case in court, the learned trial Judge should examine the writ of summons and the statement of claim. The case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 has spelt out the factors to be considered in deciding whether or not a court has jurisdiction to try a case. Also in the case of Anya vs Iyavi (1993) 7 NWLR (Pt.305) 290 Karibi Whyte JSC has put the position more succinctly thus, I quote:

 

“Where the claim endorsed on the writ of summons and statement of claim discloses a cause of action, and the subject matter of the action is within the jurisdiction of the court, and the Plaintiff is competent to bring the action, and the court is not other-wise disqualified either in its membership or enabling statute to adjudicate, the court has the jurisdiction to hear the action.”

 

Now let us examine the particulars of the Plaintiff, 1st Respondent’s claims in its statement of claim before the court below, because a statement of claim supercedes the writ of summons. In paragraph 24 of the statement of claim the 1st Respondent claims as follows:-

 

“And the Plaintiff claims:-

 

(1)     Against the 1st, 2nd and 3rd Defendants a waiver of all demurrage payable to them or any of them and release of the container to the Plaintiff.

 

(2)     Alternatively from the 1st, 2nd and 3rd Defendants damages in the sum of N390,200 plus interest at 21% from 16th March 1995 the date the consignment would have been cleared until final payment.

 

(3)     Against the 4th and 5th Defendant an order of injunction restraining them from auctioning the consignment or otherwise disposing of it.

 

DATED this 4th day of September 1995.”

 

It is the submission of the appellants counsel that a claim for Demurrage or waiver of demurrage is a claim in Admiralty as demurrage is a claim in admiralty law and practice. Counsel went further to define the word “Demurrage” as the money payable to the owner for delay for which the owner is not responsible in loading and / or discharging after the lay time has expired – See John Schofield in his Book “Laytime and Demurrage” 2nd Edition p. 289.

 

The Plaintiff averred further In Paragraphs 2, 3, 7 and 8 of its statement of claim as follows:-

 

“2.     The 1st Defendant was at all material times a common carrier of goods for reward in the business of carriage of goods by sea and has its Head Office at Eagle House, 103/105 Geromyn Street, London SW1Y 6ES.

 

3. The 2nd Defendant was at all material times carrying on the business of intenational transporter, shipping, clearing and forwarding agent and has its Head Office at 4 Creek Road, Apapa, Lagos.

 

7,       On or about the 20th day of January 1995 Messrs Lagoon International (Ship) Trading Company of 79 Ambrook Road, Reading, RG.2 8SH, England (hereinafter called “the shippers”) entered into a contract of carriage of a container by sea with the 1st Defendant. The container contained fairly used fridges and freezers to be carried by MV Roma Voyage 6480.

 

8. The 1st Defendant as a common carrier accepted the container for carriage from Tilbury, United Kingdom, to Apapa Tin Can Island, Lagos, Nigeria for delivery to the Plaintiff at Lagos and was under a duty to issue and deliver to the shipper a bill of lading on which the Plaintiff is named as the consignee. The 1st Defendant issued a Bill of Lading No. TC.6012 evidencing the contract of carriage of goods by sea and identifying the container as No. GRIU. 1079524 Seal No.24791″

 

The 1st Respondent in their brief of argument have submitted that admiralty jurisdiction in the context of Decree No. 59, as far as carriage of goods is concerned, is limited in scope to matters arising from and claims relating to loss or damage to goods occurring on board a ship or at the port of destination or between point of off-loading and point of delivery. Counsel for Respondent further stated that the jurisdiction also includes agreements relating to the carriage of such goods whether such agreements are oral or written. Respondent also conceded that the scope is wide enough to include criminal, tortious and contractual liability, but it must be in relation to the carriage or delivery of the goods.

 

In the light of the above submissions, let us look at the relevant provisions of Admiralty Jurisdiction Decree as it touches the issue of the admiralty jurisdiction of the Federal High Court. Sections 1(1) (a), (b), (c), (e), (f), (n), 3 and 2(f) of Decree No.59 of 1991 read thus:-

 

“1.     (1) The admiralty jurisdiction of the Federal High Court (in this Decree referred to as the Court) includes the following, that is –

(a)     Jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in section 2 of this Decree;

(b)     any other admiralty jurisdiction being exercised by any other court in Nigeria immediately before the commencement of this Decree;

(c)     any jurisdiction connected with any ship or, aircraft which is vested in any other court in Nigeria immediately before the commencement of this Decree;

(e)     a claim for loss of or damage to goods carried by a ship;

(f)      a claim out of an agreement relating to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter- party or otherwise;

(n)     a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of any kind, in relation to a ship;

 

(2)     The admiralty jurisdiction of the Court in respect of carriage and delivery of goods extends from the time the goods are placed on board a ship for the purpose of shipping to the time the goods are delivered to the consignee or whoever is to receive them whether the goods were transported on land during the process or not.

(1)     A reference in this Decree to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim.

 

(3)     A reference in this Decree to a general maritime claim is a reference to –

(f)      a claim out of an agreement relating to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise;

 

The Respondent has submitted that the contractual or tortuous liability must be in relation to the carriage or delivery of the goods. I do not agree with this submission of counsel because of the express provisions of Decree No. 59 Section 1 (3) of 1991.

 

“Any agreement or purported agreement monetary or otherwise, connected with or relating to carriage of goods by sea whether the contract of carriage is executed or not shall be within the admiralty jurisdiction of the Court”

 

The Decree goes further to say that admiralty jurisdiction covers general maritime claims. See Section 2 (3) (f) which reads thus:

 

“A reference in this Decree to a general maritime claim is a reference to

 

(a)     …………………

(b)     ……………………

(f)      a claim out of an agreement relating to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter party or otherwise.”

 

When one examines carefully the above provisions of the Decree along the line of the Plaintiff’s claims in this case the claim for a waiver of demurrage sprang from a contract of carriage of a container by sea – See paragraph 7 of the statement of claim. In paragraph 8 of the statement of claim 1st Defendant, as a common carrier, was alleged to have accepted the container from Tilbury UK to Apapa Tin Can Island for delivery to the Plaintiff at Lagos. 1st Defendant was also quoted as having issued a Bill of Lading No. TC.6012 evidencing the contract of carriage of goods by sea and the container was identified as No. GR LU.1079524 with seal No.24791.

 

Before any Court can decide the issue of waiver or Demurrage as claimed by the Plaintiff, the Court has to look into the agreement between the parties. The agreement comes under an agreement relating and connected with carriage of goods by sea. I cannot but agree with the submission of the appellant that this case comes clearly under the admiralty jurisdiction of the Federal High Court. The issue of Bill of Lading is definitely under the contract of carriage of goods by sea. So also is the issues of Demurrage which has been defined as “Money payable to the owner for delay for which the owner is not responsible in loading and discharging after the laytime has expired.”

 

Sections 1(1), (g) (2) (3)(2)(f) and 19 of the Admiralty Jurisdiction Decree No.59 of 1991 have in my view conferred exclusive jurisdiction over this case upon the Federal High Court and not the High Court of Lagos State. The 1st issue is therefore resolved in favour of the Appellant.

 

Issue 2 is mainly on the decision of the Supreme Court in the case of A.M.C. vs. N.P.A. (1987) 1 NWLR (Pt. 51) 475 where the Supreme Court held that the claims of the Plaintiff did not arise out of any agreement relating to carriage of goods in a ship. A fortiori, the Federal High Court could not exercise admiralty jurisdiction to determine the claim. I wish to distinguish that case from the present one. In the case of A. M. C v. N.P.A. (1987) 1 NWLR (Pt.51) 475 the claim before the Federal High Court was a simple claim of N198,872.99 as general and special damages with interest at the rate of 10%. per annum for breach of a contract of Bailment and or breach of duty as a Bailee in the custody of 47 packages of aluminium sheets, delivered to the Defendant ex MV River Aboine. In the present case the Plaintiff’s claims were for waiver of all demurrage payable to them or any of them and release of the containers to the Plaintiff. The alternative claim was for the sum of N390,200 as damages with interest at 21% from 16th March 1995 the date the consignment would have been delivered until final payment. Upon a careful perusal of the above Plaintiffs claims, the goods referred to were not lost as in the case of A.M.C. v N.P.A (supra). In the present case the goods had not yet been delivered to the owners even though they had arrived Lagos.

 

The issues of waiver of demurrage are still referrable to the agreement of the contract of carriage by sea.

 

It is my humble view that this case is not on all fours with the case of A.M.C. (Nig) Ltd. v. N.P.A. (1987) 1 NWLR (Pt.51) 475. The provisions of Section 1(2) of the Admiralty Jurisdiction Decree No. 59 of 1991 covers this case, hence it should be tried by the Federal High Court and not the Lagos High Court. Section 1(2) of the Decree reads thus, I quote:

 

“The Admiralty jurisdiction of the Court in respect of carriage and delivery of goods extends from the time the goods are placed on board a ship for the purpose of shipping to the time the goods are delivered to the consignee or whoever is to receive them whether the goods were transported on land during the process or not.”

 

The combined effect of the above section and other relevant sections of Decree No.59 of 1991 referred to by me under issue 1 go to show that this is a clear case of admiralty matter which can only be tried exclusively by the Federal High Court. In effect this appeal is meritorious and it succeeds. The Ruling of the Lagos High Court delivered on 1lth February 1999 is hereby set aside and in its place an order of transfer to the Federal High Court is made. Case is remitted to the Federal High Court to be heard de novo. The 1st Respondent is to pay N2,000 Costs to the Appellants.

 

SULEIMAN GALADIMA, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother IGE, J.C.A. I entirely agree with the reasoning and conclusion therein.

 

The Plaintiff’s claims against the 1st, 2nd and 3rd Appellants as Defendants as endorsed in the Statement of Claim are for “,Waiver of all Demurrage payable to the Defendants or any of them and release of the Container to the Plaintiff.” This claim sprang from a Contract of Carriage of a Container by Sea. This is clear from averments in paragraphs 7 and 8 of the Statement of Claim 1st Defendant was said to have issued a Bill of Lading No. T.C. 6012 evidencing the Contract of Carriage of Goods by Sea.

 

The Container was identified as No. ORIU. 1079524 seal No. 24791. The Agreement between the parties comes under an agreement relating to and connected with Carriage of goods by Sea. It is in view of this I hold the opinion that this case comes clearly under the Admiralty jurisdiction of the Federal High Court. The issue of Bill of Lading is clearly under the Contract of Carriage of Goods by Sea. So also is the question of Demurrage by its very definition. The inevitable conclusion I also therefore reach is that Sections 1(1), (g) (2); 3(2)(f) and 19 of the Admiralty Jurisdiction Decree No. 59 of 1991 have conferred exclusive jurisdiction to entertain the plaintiff’s claim.

 

As carefully and clearly explained in the lead judgment, I also agree that this Appeal is meritorious and it succeeds. Accordingly the Ruling of the Lagos State High Court is hereby set aside. I also make an order of transfer of the case to the Federal High Court to be heard de novo. I award N2, 000 costs in favour of the Appellants.

 

AMINU SANUSI JCA.: I had a preview of the judgment just delivered by my learned brother Ige J.C.A. I entirely agree with the reasoning and conclusion in the leading judgment. I also see merit in the appeal and allow it accordingly. I abide by the consequential order made including one on cost.

 

Cases referred to in the judgment.

Tella v. Usman (1997) 12 NWLR (Pt 531) 168

Madukolu v. Nkemdilim (1962) 2 SCNLR 341

Anya v. Iyayi (1993) 7 NWLR (Pt. 305) 290

A.M.C v N.P.A (1987) I NWLR (Pt. 51) 475.

 

Statute referred to in the judgment.

Admiralty Jurisdiction Decree No. 59 of 1991 s. 1(a) (b)(c)(e)(f)(n) 3, 2(f), 1(3), 2(3)